May (Mary) McGee, who died this week, leaves a towering legacy. The legal case she took with her husband Shay led to the assertion in 1973 that section 17 of the 1935 Criminal Law (Amendment) Act prohibiting the sale and importation of contraceptives was unconstitutional. This law, rigidly enforced, had a profound impact on the health of many women. McGee, then aged 27, a Catholic mother of four with a history of toxaemia of pregnancy (a potentially fatal complication that can worsen with each ensuing pregnancy), took the case after her contraceptives, ordered from abroad, were seized by customs. She argued the 1935 act violated her right to marital privacy, an argument rejected by the High Court but vindicated by the Supreme Court, with Brian Walsh and Seamus Henchy in the 4-1 majority.
In his celebrated judgment, Henchy performed a sweeping tour d’horizon of the Constitution and found that, if you took everything that the document protects, it implies a protected zone of individual freedom where the State cannot interfere. The current Supreme Court judge Gerard Hogan has said the court’s judgment was the “single most important decision, in terms of its political and social consequences” in its history.
The McGee couple were people of modest means facing the weight of decades of Catholic moral interests. Brave and sharp witted, they endured abuse and denunciation from the altar of their local church, after which they walked out. When Shay was asked in court how he felt about the morality of May using contraceptives, he responded “I’d prefer to see her using contraceptives than be placing flowers on her grave.”
The process of legislating for the decision was drawn out and contentious but eventually led to the situation today where free contraception is available to women, transgender and non-binary people from age 17 to 35. As McGee saw it, once she took the case “there was no going back.” Her case was paramount in demonstrating the Constitution could be used to protect the dignity of the individual, a dignity McGee personified.
